The Theory of Norm Conflict Solutions in International Investment Law

SUSTAINABLE DEVELOPMENT IN INTERNATIONAL INVESTMENT LAW, Markus Gehring, Andrew Newcombe, and Marie-Claire Cordonier Segger, eds., Forthcoming 2010

12 Pages Posted: 12 Jan 2010 Last revised: 4 Aug 2010

See all articles by Jörg Kammerhofer

Jörg Kammerhofer

University of Freiburg - Faculty of Law

Date Written: August 1, 2009

Abstract

This chapter commences with a discussion of the possibilities and forms of norm-conflict in international investment law. The discussion illustrates that tribunals tend to focus on the International Investment Agreement before them and not to delve deeply into questions of norm-conflict, while scholarship utilises orthodox conflict resolution maxims. Both tactics can be criticised from a theory of positive international law. Pragmatic solutions - based as they are on convenience, rather than analysis - may not reflect the underlying positive law. Scholars using conflict-resolving maxims (like lex posterior or lex specialis), on the other hand, are far too optimistic about what the employment of the maxims - even if they had a sound foundation in positive law - is able to affect vis-à-vis norm-conflict.

Keywords: norm conflict, international investment law, lex posterior maxim, lex specialis maxim

Suggested Citation

Kammerhofer, Jörg, The Theory of Norm Conflict Solutions in International Investment Law (August 1, 2009). SUSTAINABLE DEVELOPMENT IN INTERNATIONAL INVESTMENT LAW, Markus Gehring, Andrew Newcombe, and Marie-Claire Cordonier Segger, eds., Forthcoming 2010. Available at SSRN: https://ssrn.com/abstract=1534124

Jörg Kammerhofer (Contact Author)

University of Freiburg - Faculty of Law ( email )

D-79098 Freiburg
Germany

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